ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12580-20
DATE: 20120618

BETWEEN:

HER MAJESTY THE QUEEN – and – CHARLETON CHUNGKUONG Defendant

James Clark and Rick Visca for the Crown
Paul Genua and Najma Jamaldin, for the Defendant

HEARD: June 11, 2012

ruling on s. 8 charter APPLICATION

boswell j.

OVERVIEW:

[1] A euphemism is a word or phrase used in place of a term that might be considered harsh or unpleasant. The phrase “dynamic entry” is a euphemism for what the police do when they want to enter a residence without knocking. The accused and his wife learned about dynamic entries firsthand when the police came calling in the early morning hours of August 7, 2009.

[2] On August 7, Mr. Chungkuong and his wife were asleep in the upstairs bedroom of their home at 71 Stotts Crescent in Markham, Ontario. At 3:22 a.m., members of the York Region Police Service (“YRPS”) tactical team, broke down their front door with a battering ram and entered their home. On their heels were drug enforcement officers from both the YRPS and Durham Police Service. As many as 15 armed officers spread out through the house with the immediate goal of seizing and securing its occupants. Awakened by the sudden banging noise, the accused and his wife held each other in fear as they heard footsteps climbing the stairs to the upper level of the house where their bedroom was located. They heard someone shout, “police”. Moments later several officers of the tactical team entered their room with firearms pointing at them. They were handcuffed and escorted out of the home. Their two year old son was in another bedroom. He was awake and crying, but Mr. Chungkuong and his wife were not permitted to attend to him.

[3] The dynamic entry was certainly efficient. Within about five minutes the house was secured, the accused and his wife were arrested and removed in handcuffs, and the search for evidence commenced. During the search a pound of cocaine was located, hidden in a box of Kleenex located on top of a fish tank in the kitchen.

[4] The accused acknowledges that the police had a valid warrant to search his home. He does not challenge the warrant itself, but he does challenge the constitutionality of the manner in which the warrant was executed. He asserts that, in the circumstances of this case, the dynamic entry was unconstitutional, as was the manner in which his home was “ransacked” by the police, to borrow the language of his application. The accused bears the onus, when alleging a Charter violation, of establishing the breach on a balance of probabilities.

THE ISSUES:

[5] The application requires that the following issues be addressed:

(i) What is the status of the “knock notice rule” in Canadian jurisprudence?

(ii) Did the police have reasonable grounds to utilize a dynamic entry?

(iii) Is it necessary for police to obtain prior judicial authorization for dynamic entries?

(iv) Has the accused established that the state in which the police left his home infringed his s. 8 right to be free from unreasonable search and seizure?

(v) In the event that a breach is established, should the evidence of the cocaine found at 71 Stotts be excluded under s. 24(2) of the Charter ?

DISCUSSION:

The Knock Notice Rule

[6] A review and consideration of the role the knock notice rule plays in Canadian jurisprudence has been made substantially easier by two recent decisions. The first is a decision of Justice Code, from this Court, in R. v. Thompson, 2010 ONSC 2862 (“ Thompson ”), which was released May 17, 2010. The second is the even more recent decision of the Supreme Court in R. v. Cornell, 2010 SCC 31 (“ Cornell ”), released July 30, 2010.

[7] Cornell and Thompson were cases involving the use of the dynamic entry technique by police in Calgary and Toronto respectively. In both cases, the police were executing search warrants at personal residences looking for drugs. In both cases, the reasonableness of the manner of executing the search warrant was squarely in issue.

[8] Writing for the majority of the Court in Cornell , Justice Cromwell reiterated the well-settled standard for compliance with s. 8 of the Charter : to be reasonable under s. 8, a search must be authorized by law, the law itself must be reasonable and the search must be conducted in a reasonable manner: R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265 at page 278. It is the manner in which the search was conducted that is at issue in the case at bar. The first assertion of the accused is that the police used unnecessary force to gain entry to his home. This assertion brings into play the knock notice rule.

[9] The knock notice rule has long been a part of the common law and indeed continues to be a part of the law of search under the Charter : Thompson , as above. Cromwell J. set out the basic principles of the rule at paragraph 18 of Cornell , citing Eccles v. Bourque, 1974 SCC 191, [1975] 2 S.C.R. 739:

Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give (i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves s law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.

[10] Failure to comply with the approach described in Eccles v. Bourque does not automatically render a search unreasonable. It does, however, place an onus on the police to explain why they thought it necessary to depart from that approach. “[T]he Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence” ( Cornell , para. 20 ). In other words, they must bring themselves within the exigent circumstances exception to the rule. The greater the departure from the principles set out in Eccles v. Bourque , the heavier the onus is on the police to justify their methods.

Dynamic Entry: The Reasonable Grounds Issue

[11] In assessing whether the police had reasonable grounds to enter a premise without first announcing their presence, three significant factors must be remembered, as observed by Cromwell J. in Cornell . First, the decision by the police must be judged by what was, or reasonably should have been known to them at the time the decision was made and not in light of information subsequently obtained. Second, the police are to be granted a certain amount of latitude in the manner in which they decide to enter and not with the nuanced precision of a “Monday morning quarterback”. Third, section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present ( Cornell , paras. 20-24 ).

The Evidence

[12] Detective Ryan Connolly testified during the voir dire held in connection with the s. 8 application. He was the supervising officer in charge of the execution of the search warrant at 71 Stotts. He said the initial decision to utilize the dynamic entry was not made by him, but would likely have been made by one of the lead investigators at the time, either Detective Gillis or Detective Hudson. He was the team leader with respect to the execution of the warrant, however, and he confirmed in evidence that the ultimate “game time” decision to use the dynamic entry technique was his.

[13] To get a full appreciation of the information the police had at the time the search warrant was executed, it is helpful to consider the Information to Obtain (“ITO”) filed in support of the application for the warrant. Detective Gillis was the affiant of the ITO, which is some 118 paragraphs in length. Though Detective Connolly did not expressly say that he had reviewed the ITO prior to executing the warrant, it is reasonable to infer that he was aware of the same information set out in the ITO by virtue of his role as a senior officer in the investigation, his role as team leader with respect to the execution of the warrant at 71 Stotts, and his role as a surveillance road boss throughout the investigation.

[14] The information in the ITO came almost entirely from telephone intercepts and surveillance. It included, amongst much other information:

(i) An overall view of the police theory that Mr. Ngo was supplying cocaine to an individual named Michael Patrick, who they believed to be a street level drug dealer. Mr. Ngo was in turn being supplied by an individual named Khanh Mac and possibly an unknown individual associated with 71 Stotts (ITO, paras. 8-21);

(ii) An analysis of data from tracking devices installed in Mr. Ngo’s vehicles, with prior judicial authorization, demonstrates that his vehicles were in the immediate area of 71 Stotts twelve times between July 3, 2009 and July 26, 2009. The duration of each stay was between 1 minute and 19 minutes. Most stays were less than 6 minutes (ITO, para. 90);

(iii) On June 30, 2009, officers conducting surveillance on Mr. Ngo’s residence observed an unknown Asian male arrive at 12:23 p.m. in a black Mercedes, bearing license plate BEXZ336, later identified as belonging to the mother of the accused. The male carried a bag into Mr. Ngo’s residence. Thirty minutes later, the same male exited the residence with the same bag, which he placed in the trunk of the Mercedes. He retrieved another bag from the trunk and took it inside Mr. Ngo’s home. Shortly thereafter he left Mr. Ngo’s residence and drove directly to 71 Stotts and went inside (ITO, para. 55);

(iv) On July 21, 2009, the police intercepted telephone communications of Mr. Ngo that indicated he was planning to conduct drug transactions. They began surveillance on his home at about 9:05 a.m. At just past 6:30 p.m., Mr. Ngo left the residence and went to 71 Stotts. He went into the residence and came back out 8 minutes later, carrying a white plastic bag. He returned to his residence and took the bag inside. A further intercepted telephone communication suggested that Mr. Ngo was going to meet a drug customer a short distance away. At 7:09 p.m., Mr. Ngo left his residence with an unknown male. Mr. Ngo was wearing a shoulder bag and carrying the white plastic bag. He drove to a nearby gas station where he spoke to a male in a parked vehicle. Mr. Ngo entered the rear seat of the vehicle and officers saw that he opened the shoulder bag. A minute later he exited the vehicle, walked to its trunk and retrieved a plastic bag. He then returned to his own car with the plastic bag. Officers theorized that Mr. Ngo picked up cocaine from 71 Stotts and delivered it to his purchaser, receiving cash from the trunk of the car in payment (ITO, para. 86).

(v) Intercepted communications between Mr. Ngo and Mr. Patrick, as well as between Mr. Patrick and an individual named Shane Dehaney, make it apparent that Mr. Patrick was attempting to obtain a firearm for Mr. Ngo. It is not clear whether the firearm was ever acquired and provided to Mr. Ngo, but the evidence gathered by the police makes it a very real possibility. Mr. Ngo has prior convictions for gun-related offences, including possession of an unauthorized firearm in 2008.

[15] Detective Connolly testified that, in his experience, street level drug dealers frequently have firearms. The individuals under investigation in this case dealt with significant sums of cocaine and there was clear evidence of at least Mr. Ngo attempting to acquire a firearm. The police had very real concerns that others involved in the investigation may have firearms as well.

[16] Under cross-examination, defence counsel pressed Detective Connolly about whether it is a general practice of the Durham Regional Police Service (“DPS”) to use the dynamic entry technique in certain situations, such as when executing search warrants where cocaine is being searched for, or otherwise when warrants are executed at night. Detective Connolly was consistent in his evidence that the manner of execution of a warrant is determined on a case-by-case basis. He said that he has been involved in the execution of several hundred warrants and that dynamic entries have been used in just over half of them.

[17] In this particular case, Detective Connolly said he was particularly concerned about two factors, and they are the classic exigent circumstances factors: (1) the destruction of evidence; and (2) the possibility of the presence of firearms.

[18] The concern about the destruction of evidence reflects the fact that cocaine is easily disposed of by flushing it down the toilet. In Detective Connolly’s experience, where cocaine is involved, if the police knock first there is inevitably a race to the bathroom to destroy evidence. It is unlike the situation where there is a large scale marijuana grow operation where it is impossible to quickly dispose of the evidence. That said, he remained firm in his position that there is no general policy to always use the dynamic entry technique when cocaine is being sought.

Positions of the Parties

[19] The applicant’s position is that the evidentiary record is insufficient to satisfy the police onus to establish the reasonable basis for their decision to use a dynamic entry. He asserts that the evidence of Detective Connolly was essentially generic and that there are a number of frailties in it. He submits, essentially, that while the threat of a firearm is attention-grabbing, upon examination there was no reasonable basis to believe that the occupant(s) of 71 Stotts possessed firearms. He points to the following factors: (1) the police did not know who lived at 71 Stotts and whether they had any criminal antecedents; (2) the only evidence the police had with respect to firearms related specifically to Mr. Ngo; and, (3) Mr. Ngo had been arrested prior to the execution of the warrant, without a firearm in his possession, and he was safely in custody.

[20] The Crown’s response, simply put, is that the police had more than sufficient justification to utilize a dynamic entry.

Application of the Governing Principles

[21] There is no question the police entered 71 Stotts without first announcing their presence. The onus in on the police, therefore, to establish the presence of exigent circumstances. They say that they had a reasonable concern about the destruction of evidence and about the presence of weapons.

[22] There was, in my view, ample evidence to implicate 71 Stotts in the trafficking of cocaine, whether by way of a supply source or stash house for Mr. Ngo. I accept, of course, that there is a third, very real possibility that 71 Stotts was neither a stash house or supply source, but that ultimate determination is for another day. In my view, it was reasonable for the police to believe that cocaine may be found in 71 Stotts based on the information gathered through their surveillance and through telephone intercepts. I find that the police had more than just generic information about the presence of drugs in 71 Stotts. They had surveillance evidence that supports the theory that drugs were being transferred between 71 Stotts and Mr. Ngo’s residence. Recall, as well, that there is no challenge to the validity of the warrant to search 71 Stotts. The issuing justice must have been satisfied that the police had reasonable grounds to believe that there was evidence of an offence under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 to be found at 71 Stotts before issuing the search warrant. The accused takes no issue with the sufficiency of the grounds on which the warrant was issued.

[23] I accept that the police had a valid and reasonable concern about the prospect of the destruction of evidence. I accept that cocaine is readily disposed of and that the element of surprise gives the police an advantage in securing evidence before a suspect has an opportunity to destroy it. I am not satisfied that this information, on its own, would justify the level of force used to enter the home of the accused in the middle of the night. But the evidence of the potential presence of drugs at 71 Stotts is not to be viewed in isolation. It must be considered in connection with the possibility of the presence of firearms in the residence. Again, as Justice Cromwell noted in Cornell , the police are not required to put their safety on the line when there is even a low risk of firearms being present. This does not mean that speculation or conjecture about the possibility of a firearm being present will justify the type of invasive force that characterizes a dynamic entry. There must be an evidentiary basis that supports the reasonableness of a concern about the possibility of harm to the officers executing the warrant.

[24] In this case, the police had information that Mr. Ngo was attempting to obtain a firearm. Mr. Ngo has a criminal record that involves weapons-related offences. Of course Mr. Ngo was not the target of the search at 71 Stotts. The police did not know who resided there. They did, however, have compelling evidence connecting Mr. Ngo to the occupants of 71 Stotts.

[25] When Mr. Ngo was arrested he was not in possession of a firearm, nor was a firearm located in the search of his residence that occurred prior to the search of 71 Stotts. These facts cut both ways. On the one hand, as the accused submits, they give rise to an inference that Mr. Ngo had not acquired a firearm. On the other hand, they raise the possibility that there may still be an outstanding and unrecovered firearm in the possession of someone associated with Mr. Ngo.

[26] I am satisfied that there was greater than a low risk of firearms being present. Not a lot greater, perhaps, but greater nonetheless. This factor alone, and certainly taken together with the risk of destruction of evidence, provides the evidentiary foundation to establish that exigent circumstances existed. I would describe this case as being close to the line. Reasonable people may certainly differ about the sufficiency of stated justifications for the use of a dynamic entry. The 4-3 split in the Supreme Court’s decision in Cornell attests to that fact. On balance, I am satisfied that, in this case, the police have discharged their onus to provide a reasonable basis for the decision to utilize the dynamic entry technique.

Should the Warrant Have Expressly Authorized a Dynamic Entry?

[27] The requirement for prior judicial authorization of a dynamic entry was thoroughly canvassed by Justice Code in Thompson . He concluded that “there is no present authority requiring the police to obtain prior judicial approval, when seeking a search warrant, of any plan they might have to execute the warrant without making the common law announcements” (para. 59). I agree with his conclusion.

[28] Nothing in the subsequent Supreme Court decision in Cornell alters the authorities on point. It was not necessary for the police to obtain prior judicial approval of their plan to access 71 Stotts through a dynamic entry.

Did the Manner of the Search Itself contravene s. 8 of the Charter ?

[29] Quite apart from the manner of entry, the police, according to the accused, ransacked 71 Stotts and left it turned upside down. He says that the manner in which the search was conducted, and the state in which the residence was left after it was over, breached his rights under s. 8 of the Charter .

[30] A search that is carried out in a manner that ignores the property rights of the occupants of the premises searched and results in damage to property or leaves the premises in a state of excessive and unnecessary disarray may be an unreasonable one under s. 8: Thompson , R. v. Gogol (1994), 27 C.R. (4th) 357 (O.C.J.), R. v. Rosales , [2010] O.J. No. 1358 (S.C.J.) , and R. v. Edwardson (2005), 2005 BCSC 463.

[31] In Gogol , as above, the Court found that police officers had deliberately and unnecessarily damaged the home occupants’ property during a search by, amongst other things, smashing the glass door of a microwave oven, breaking speakers, and breaking a mirror in a dresser, on top of up-ending drawers and dumping contents on the floor. The conduct of the police was characterized as wilful, flagrant and reprehensible.

[32] In Rosales, as above, the residence was “torn apart” by the police, a coffee table was broken, a cupboard door removed, beds were torn apart, and plants were overturned. The conclusion of the Court was that s.8 was violated, given the damage that occurred.

[33] In Thompson , the police used a “distraction device” – a device that starts with a loud explosion and then gives off a very bright light. It caused some damage to a couch and wall. The couch was then left upside down in the backyard. The manner of the search itself was to deposit all of the contents of shelves, drawers and closets on the floor and then leave it all there. Code J. found the deliberate and unnecessary damage to property and the deliberate and unnecessary disorderly way in which the search was conducted, rendered the search unreasonable.

[34] The evidence in this case about the state of the property came from two sources. First, Detective Connolly testified that the police left the house similar to the way they found it. He conceded that it would have been untidy or messy as a result of their search, which suggests to me that in fact the police did not leave it similar to the way they found it. He acknowledged the obvious damage to the front door that was broken in, but said he was unaware of any further or other damage to the home or its contents.

[35] Under cross-examination, Detective Connolly testified that whenever his unit is conducting a search they do so professionally and in a manner that will not bring the unit into disrepute. He said he does not take things out of a drawer and just dump them. He said doing so would hamper the search. He tried to be as neat as possible, though inevitably there will be some mess. He denied that 71 Stotts was left “torn apart”.

[36] The mother of the applicant, Yasmine Chung, testified during the voir dire as well. After the accused and his wife were arrested, they were released on bail on conditions that included not returning to 71 Stotts. So Ms. Chung went in to retrieve some of their belongings for them and to tidy it up.

[37] She described the state of the home as a “garbage dump”. There were clothes everywhere, and drawers and cabinets were opened up. All the clothes from the walk-in closet upstairs were put on the floor. In the basement, there were toys everywhere, so much so that it was difficult to walk around. Boxes had been opened up and their contents left out on the floor. The front door was broken in and a baby gate was also broken. There were some scratches on some walls.

[38] She did some of the clean up herself and hired a cleaner to come in half-days for a week to get the house back in order. She also hired a painter to do some touch-ups of the scratches left on walls. She paid the painter $200, which is an amount that suggests very minimal painting was done.

[39] Defence counsel submitted that the manner of the search conducted in this case reached the same levels of unacceptable disorder, damage and disarray referenced in cases like Thompson . Crown counsel submitted that there is insufficient evidence on which to make such a finding, in view of the lack of a photographic record of the state of the home. He argued that Yasmine Chung’s evidence must be viewed with some caution because the terms she used are relative ones. In other words, one person’s reasonably tidy may be another person’s cluttered and messy.

[40] A significant difficulty in the evidentiary record in this case, unlike Thompson , Rosales and Edwardson , is that there is no photographic account of the state in which the home was left. Photographic evidence is by no means a pre-requisite to relief, but that type of evidence would aid the court in making an objective determination of the condition of the home at the time the police completed their search.

[41] I agree that I must view Ms. Chung’s evidence with some caution. Though I found her to be a credible witness, I am not satisfied that she was entirely objective, a fact that undermines the reliability of the evidence. Her view of the state of 71 Stotts was through the lens of a person intimately involved in the transaction. She had to attend at the residence in the middle of the night to provide care for her young grandson. Her son had just been lurched awake by the police in the middle of the night and taken away in handcuffs. She saw the door broken in. She was not allowed access to the premises. These factors may very well impact on her ability to provide an objective evaluation of the state of the premises after the police search was concluded.

[42] There is agreement in the evidence that the residence was left untidy. Untidiness is neither surprising nor alarming. I think it would be an impossibly high standard to impose on the police to leave a property in pristine condition following the execution of a search warrant. Drugs like cocaine are quite frequently secreted away in very imaginative places, which unfortunately necessitates invasive searching. Section 8 requires only a standard of reasonableness. It is only where the search is conducted in a manner that unnecessarily and unreasonably disregards the property rights of the occupants that it reaches a level that infringes s. 8.

[43] Although I am satisfied that the police left 71 Stotts in an untidy condition, I am not satisfied, on Ms. Chung’s evidence alone, that the accused has discharged the burden of proving the breach of his s. 8 rights on a balance of probabilities.

Section 24(2)

[44] In view of my conclusion that the accused has failed to establish any breach of his s. 8 rights, it is unnecessary to conduct any analysis under s. 24(2) of the Charter .

CONCLUSION:

[45] In the result, and in the absence of any established Charter breaches, the application is dismissed.

Boswell J.

Released: June 18, 2012